Wallington & Spina (No 2) [2023] FedCFamC2F 1017

Wallington & Spina (No 2) [2023] FedCFamC2F 1017

Relationship Details

• Type: De facto
• Duration: Started cohabiting in late 2014, separated in May 2020, amounting to approximately 5.5 years.
• Ages at Judgment: Wife (Applicant) 58 years, Husband (Respondent) 69 years.

Children

• From this Relationship: None.
• From Previous Relationships:
  • Husband has two children from former relationships.
  • Wife has three now-adult children.

Initial Financial Positions

• Wife:

  • Owned a property in Suburb O and a vehicle.
  • Had credit card liabilities of about $20,000 and superannuation of $46,000.
  • Worked as a health care worker with an income of about $50,000 per annum.

• Husband:

  • Owned properties at H Street, K Street, and F Street.
  • Owned a business, multiple vehicles, shares, and savings.

Contributions During the Relationship

• Financial Contributions:

  • Husband managed the business and finances related to properties.
  • Wife received a workers’ compensation payment and managed daily household expenses such as groceries and utilities.

• Non-financial Contributions:

  • Wife contributed significantly as a homemaker and in caring for one of the husband's children.
  • Participated in discussions and activities for property acquisitions and renovations.

Post-Separation Contributions and Actions

• Financial and Non-financial Contributions:

  • Wife continued covering rates for the F Street property until November 2020, lived there rent-free post-separation.
  • Husband continued managing property-related financial issues and liabilities.

• Dissipation & Property Adjustments:

  • The husband sold investments and properties post-separation; proceeds were central to settlement considerations.

Current Financial Position & Property Pool

• Wife:

  • Income: Approximately $1,444 per week.
  • Assets in her own name, including a notional asset of $150,000 and superannuation: $577,714.

• Husband:

  • Income: Estimated weekly income from business and rental approximately $2,238.
  • Holds most of the assets, including an inheritance from his mother's estate in 2018 of about $4 million.

• Property Pool: Net assets, add-backs and superannuation of $7,204,881.

Assessment of Contributions and Future Needs

• Contributions:

  • Husband’s contributions assessed at 85.5%, wife's 14.5%, viewed in the round.
  • Financial contributions, including the husband's initial property and his inheritance, favoured the husband; homemaker and parenting contributions favoured the wife, and her contributions were found to have been made more arduous by family violence.

• Future Needs Considerations:

  • The court considered the future-needs factors, including the wife's health and capacity to work, but declined to make any adjustment.

• Division: Wife 14.5% of the net pool ($1,044,708), husband 85.5% ($6,160,173). The wife was to be paid $466,993 from controlled monies to bring her to her entitlement.

Unique Aspects

• Family Violence: The wife's contributions were found to be more arduous because of family violence, and this was recognised under the Kennon principles in assessing contributions.
• Inheritance: Husband's inheritance was a considerable factor, heavily influencing asset distribution.
• Disclosure and Compliance: The court found deficiencies in both parties' disclosure and declined the wife's request for an adjustment on that ground.
• Start of the relationship: The wife said the relationship began in 2013; the court found the de facto relationship began in late 2014, when the parties started living together.

The law since this decision

This case was decided before 10 June 2025. From that date the Family Law Act 1975 (Cth) sets out the steps for a property settlement between de facto partners in s 90SM(3) to (5), and the court must consider the effect of family violence on each party's contributions (s 90SM(4)(ca)) and on their current and future circumstances (s 90SM(5)(a)), and any material wastage of property (s 90SM(5)(d)). In Western Australia, a property case between married couples is decided under that Act in the Family Court of Western Australia. A case between de facto partners in Western Australia is decided under the Family Court Act 1997 (WA), which has not adopted those 2025 changes.